GSB# 1115/01
UNION# OLB438/01
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Brennan)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Richard M. Brown Vice-Chairperson
FOR THE GRIEVOR Glen Chochla
Counsel
Caroline Engelmann Gottheil
Barristers and Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Legal Services
Liquor Control Board of Ontario
HEARING DATE April 3, 2002. Aaron Brennan received a three-day suspension for alleged misconduct as a casual employee at the Ottawa warehouse on May 29, 2001. He was notified of the suspension on June 7 but no grievance was filed until September 7. This preliminary award addresses the employer’s contention that the grievance should be dismissed as untimely.
I
The disciplinary process began with a notice of intended discipline, dated May 29, 2001, from the operations manager, John Crupi:
This is further to your refusal to comply with consecutive requests made by your supervisor on the morning of May 29, 2001.
For your clarification, this is in regard to the operation of specific machinery.
Please submit in writing within three working days an explanation for this occurrence.
Should a meeting be scheduled following receipt of your written statement, please be advised that you are entitled to Union representation as discipline may result from the meeting.
Should you fail to reply within three working days Management will act upon currently available information.
The grievor asked for additional information which Mr. Crupi provided in a letter dated May 31:
Please accept the following as further clarification of my letter dated May 29, 2001.
On the morning of May 29, 2001 Mike Sabourin asked you to drive another machine while Gilles Desjardins was trying to fix the one you had been driving.
Mr. Sabourin asked Mr. Desjardins if it would take very long and he replied that it might take a while. At that time Mr. Sabourin asked you to drive another machine. You indicated that you would just wait for the one you had been driving to be repaired. Mr. Sabourin then asked you to drive #9 machine. You refused to do so, stating again that you would wait for the other to be repaired. After a lapse of approximately five minutes Mr. Sabourin once more asked you to drive machine #9. Again you refused.
Mr. Sabourin then asked you to mop the floor in Aisle "G" while you waited. You refused to comply with this request also.
At this point Mr. Sabourin asked you to report to the main floor and assemble orders there until the machine was ready. A short time later you returned to the basement and Mr. Sabourin again asked you to drive machine #9 as repairs to the other machine had yet to be completed. You refused claiming machine #9 was unsafe to drive.
The grievor’s written reply, dated June 3, takes issues which some of the facts alleged, asserts a concern about safety and questions his supervisor’s motives:
On the morning of May 29th, I was preparing my order as usual, when my machine was not working properly. I went and told my supervisor that my machine was acting up. He suggested that I wait until it would not work anymore so we could show the mechanic.
When the mechanic came to see what the problem was, Mr. Sabourin suggested that I take another machine. I then replied that I would need a machine with a board, he replied then go sweep the floor. I was having lower back pains so I replied my back is hurting. I suggested going to find another machine on another floor with a board. He said OK, so I did.
Around 10:00, the main floor foreman told me that I was to return to the basement. When I returned after break, my foreman was not in his office, so I tried Mr. Crupi's office. He was in a meeting at the time, therefore I tried paging Mr. Sabourin. He did not call me back so I waited by his office until he came back. When he arrived, he suggested I use the machine with no board. I replied I don't feel safe driving a machine with no board, and then I asked if he could call the mechanic to put a board on the machine. He said no. I asked if I could call him myself. He said do what you want in a sarcastic way. I proceeded to call the mechanics shop. He did not answer the phone, so I returned to Mr. Sabourin's office to let him know that the mechanic was not in his office and if I could go see him in his shop to see if he may have a board for that machine. He then replied “yeah, yeah” in front of Mr. Stewart so I went to the mechanics shop. When I arrived my machine was fixed so the mechanic told me to take it back to its floor, which was in the basement. When I arrived back to basement, I started to assemble the orders. I feel that Mr. Sabourin was upset with me, as he was not speaking to me.
I received a letter later that day saying I did not comply with my supervisor’s orders. I felt I did things in accordance to my own safety. This issue was brought up to Mr. John Crupi in the past. I never did feel safe operating a machine with no board. I did try it several times before never getting over the fear of holding the labels in my hand and trying to operate a machine while trying to hold on the handle also.
I really feel that Mr. Sabourin does not like me and this is the reason why I asked management to transfer me to a different floor. This was done the next day. I feel that Mr. Sabourin has been harassing me for three or four months off and on. I can't seem to do anything right in his eyes. I made management aware of a prior problem in writing. I was told that they would talk to Mr. Sabourin but things did not change. I don't know how to deal with this problem on my own.
The letter imposing a three-day suspension is dated June 7, 2001 and signed by Mr. Crupi.
I am in receipt of your response to my letters of May 29th and 31st.
I cannot accept your reasons for failing to comply with simple requests from your supervisor.
There are a number of machines of this type being used in the facility on a daily basis including the one you refused to drive. Your supervisor also made an attempt to accommodate you by asking you to mop an area of the floor while your machine was being repaired. This did not seem to suit you either. It is your supervisor’s responsibility to re-assign you to other duties if you are unable to continue performing your current ones.
This uncooperative behaviour is unacceptable and must cease.
You are hereby suspended from duty without pay for three (3) consecutive shifts to be served Friday, June 8th, Monday, June 11th and Tuesday, June 12th, 2001.
Any further incidents of this nature will result in further disciplinary action up to, and including, dismissal.
II
Rick Pope, zone representative for the union at the Ottawa warehouse, was the only witness to testify about what transpired between June 7, when the grievor received the letter of discipline, and September 7, when the grievance was filed. His evidence was neither contradicted nor challenged in cross-examination.
Mr. Pope has been zone representative since 1996. He is the most senior union official at this location and performs his duties outside of working hours without any remuneration. In the normal course, he is the one who fills out a grievance form and delivers the completed form to management. A grievor also receives a copy of this form.
During his suspension, Mr. Brennan telephoned Mr. Pope at the warehouse while he was working and asked him to file a grievance. Mr. Pope had not yet received a copy of the suspension letter and he decided to wait for his copy to arrive before initiating a grievance. Sometime after the grievor returned to work, he asked Mr. Pope whether a grievance had been filed. Believing in error that he had lodged a grievance, Mr. Pope answered in the affirmative.
In fact, two grievances had been filed on behalf of the grievor in April. Those grievances related to two suspensions of two days each, one for allegedly not following a direct request from a supervisor concerning a beer pallet and the other for allegedly leaving work without completing an early departure form as requested by his supervisor and without informing him. The stage-three meeting about these two grievances was held on June 18 and attended by Messrs. Brennan and Pope. At this meeting, no mention was made of any grievance concerning the three-day suspension imposed in June.
The grievances filed in April were scheduled for hearing on September 4. On that date, Mr. Pope received a telephone call from Jean Chaykowsky, a grievance officer with the union, inquiring as to whether he had filed a grievance about the three-day suspension. He undertook to check and discovered to his dismay that no such grievance had been lodged. He then submitted the grievance dated September 7.
Mr. Pope testified this was the only time he has ever neglected to file a grievance when asked to do so. In attempting to understand how the mistake occurred, he surmised that he must have thought one of the two earlier grievances related to the three-day suspension.
The summer of 2001 was an usually busy time for Mr. Pope. He sold his house on May 8, with a closing date of July 13, and then bought another house on June 2, with a closing date of October 31. Given the interval between these two dates, he had to find temporary accommodation and faced a rental market with a low vacancy rate. He eventually found a one-bedroom apartment where he lived with his spouse and two children. He took his current union files to the apartment and stored older files at the home of his wife’s parents. Much of his furniture was stored elsewhere. Noting the record high temperatures reached in the summer of 2001 and the absence of air conditioning in the warehouse, Mr. Pope described the season there as a “long and hot” one during which “tempers flared” and disputes arose over a number of matters including overtime.
III
The time limits for filing a grievance are found in article 27 of the collective agreement:
27.3 STAGE 1 (Complaint Stage)
(a) (i) An employee who has a complaint or a difference shall discuss the complaint or difference with his/her supervisor, as designated by the Employer, within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference.
(ii) Unless otherwise agreed between the employee and his/her supervisor, a meeting in respect of an employee's complaint shall only be attended by the employee and his/her supervisor
(b) The supervisor shall consider the complaint or difference and give his/her response to the employee within ten (10) days of the discussion.
(c) If the complaint or difference is not satisfactorily resolved by the supervisor, it may be processed within an additional ten (10) days from the date of the supervisor's response or the expiration of the time limits set out in (b) above, in the following manner.
27.4 STAGE 2
The employee may file a grievance in writing with his/her supervisor specifying the clause or clauses in this Agreement alleged to have been violated
In short, an employee has ten days to discuss a complaint with his supervisor at stage one, the supervisor then has ten days to respond, and the employee has a further ten days to submit a grievance in writing at stage two. The parties agree the time limit for grieving is mandatory.
Exactly when did the time for filing a stage-two grievance expire in the case at hand where the grievor did not utilize the stage-one complaint process? In my view, having elected to forego stage one (something to which the employer did not object), the grievor was required to file a written grievance within ten days of receiving the letter of suspension on June 7, because this is the period allowed by article 27 for raising a complaint at stage one. In other words, the time limit for filing a stage-two grievance expired on June 17. This analysis leads me to conclude the grievance was filed on September 7, some eleven and one-half weeks after the deadline. Counsel for the union did not suggest it was late to any lesser degree.
IV
Section 48(16) of the Labour Relations Act permits a time limit, even a mandatory one, to be extended at the request of one party “where the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the opposite party will not be substantially prejudiced by the extension.”
I was referred to the following cases dealing with the extension of time limits: Becker Milk Company and Teamsters Union (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett); Greater Niagara General Hospital and Ontario Nurses Association (1981), 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff); Cassellholme Home for the Aged and Canadian Union of Public Employees (1982), 1982 CanLII 5066 (ON LA), 3 L.A.C. (3d) 377 (H. D. Brown); Helen Henderson Care Centre and Service Employees Union (1992), 1992 CanLII 14626 (ON LA), 30 L.A.C. (4th) 150 (Emrich); Ferranti-Packard Transformers Ltd. and United Steelworkers of America (1993), 1993 CanLII 16683 (ON LA), 36 L.A.C. (4th) 307 (Haefling); Exolon-ESK Co. of Canada and Communication, Energy and Paperworkers Union (1993), 1993 CanLII 16807 (ON LA), 37 L.A.C. (4th) 430 (Haefling); Kitchener Waterloo Hospital and London and District Service Workers’ Union (1994), 1994 CanLII 18757 (ON LA), 44 L.A.C. (4th) 293 (H. D. Brown); Donwood Institute and Ontario Public Service Employees Union (1997), 1997 CanLII 25132 (ON LA), 60 L.A.C. (4th) 367 (Brandt); Hotel Dieu Cornwall and Ontario Public Service Employees Union (1997), 1997 CanLII 24948 (ON LA), 63 L.A.C. (4th) 72; and Royal Crest Lifecare Group and Service Employees International Union (2000), 2000 CanLII 50245 (ON LA), 91 L.A.C. (4th) 389 (Craven). I have carefully reviewed these decisions and will return to them below to the extent necessary to resolve the matter in dispute.
The leading decision on what constitutes reasonable grounds for an extension is Becker Milk where Arbitrator Burkett identified three factors to be considered:
The exercise of the equitable discretion vested in an arbitrator under s. 37(5a) of the Act requires a consideration of at least three factors. These are: (i) the reason for the delay given by the offending party; (ii) the length of the delay; (iii) the nature of the grievance. If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time-limit. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits. (page 222)
In Niagara General Hospital, Professor Schiff cited with approval the award in Becker Milk and expanded the list of factors to be considered from three to six:
the reason for the delay;
the length of the delay;
the nature of the grievance.
whether the grievor was responsible for the delay;
whether the delay occurred in filing the grievance or later in the grievance process; and
whether the employer could reasonably have assumed the grievance had been abandoned.
As already noted, the instant grievance was approximately eleven weeks late. Having asked for a grievance to be filed, and having been told one had been, Mr. Brennan is not to blame for what happened. Rather, the delay resulted from an inadvertent error on the part of the responsible union officer. The immediate subject matter of the grievance is the three-day suspension imposed in June of 2001, but the grievor was subsequently discharged. As the employer wishes to rely upon this suspension as part of the disciplinary record warranting dismissal, the outcome of this grievance has a direct bearing upon the grievor’s job security. Although the delay occurred in the initial filing of the grievance, the grievor’s letter of June 3 did put the employer on notice that he disputed the allegations made against him and took the position that any discipline was unjustified. Bearing all of these factors in mind, I conclude there are reasonable grounds for an extension of the time limit for filing a grievance.
The facts before me are distinguishable from those in any of the cases upon which the employer relies where no extension was granted. The decision in Helen Henderson dealt with a classification grievance and the decision in Cassellholme Home for the Aged with a job posting grievance. Neither of those grievances had any relevance to the grievor’s continued employment.
The situation here is also very different than the one in Kitchener-Waterloo Hospital where the local union president, after consultation with a staff representative, decided not to grieve an employee’s dismissal. The grievance was filed three weeks late when another staff representative returned from holiday and took a different view of the matter. In declining to extend the time for filing a grievance, Arbitrator Brown wrote:
These facts are substantially different from the cases ... where the extension of time has been requested on the basis of inadvertence or carelessness or inexperience of union officers or other such reasons as there was no inadvertence or careless omission to take steps under the collective agreement but rather the contrary in that a considered decision was taken by the responsible union officer of the union not to file a grievance concerning the grievor’s discharge. (page 302; emphasis added)
In short, the time limit was not extended because the union reversed its decision after it had expired.
In the case at hand, Mr. Brennan was not to blame for the delay, whereas in both Exolon-ESK Co. and Donwood Institute the grievor was the one responsible for the grievance being filed late. In each case, the grievor was a former union officer and his or her fault was among the factors upon which the arbitrator relied in denying an extension. The grievor in Exolon-ESK procrastinated for more than two months before contending he should have been recalled to work. Dismissing his grievance as untimely, Arbitrator Haefling wrote:
This is also not a case where delay in filing a grievance would be attributed to the local union. Instead, any fault causing the delay in filing the grievance is in this case directly attributable to the grievor’s own lack of action. (page 435)
In Donwood Institute, the grievor waited fourteen weeks before challenging her layoff. In not extending the time limit, Arbitrator Brandt noted:
[T]he grievor in this case was herself responsible for the delay and cannot rely on bad advice or inefficiency by the union in failing to process her grievance in a timely manner as excusing the delay. (page 378)
V
I have already concluded there are reasonable grounds for extending the time limit in this case. The employer does not contend it would be prejudiced by an extension. Accordingly, I hereby extend the period for filing a grievance. The employer’s timeliness objection is dismissed.
Dated at Toronto, this 8th day of April, 2002.